The Divisional Court of Ontario recently considered a condo corporation’s application for judicial review of a CAT decision.   However, the court dismissed the application because the corporation did not exhaust its right of appeal under the Condo Act

Judicial review is a process where courts make sure that the decisions of administrative bodies (such as the CAT) are fair, reasonable, and lawful. This process is different from an appeal, where a higher court is asked to review the decision of a lower court due to a mistake. There are different requirements governing judicial review and appeals and the power of the court and the role of parties differ.

The underlying dispute in this case involved a unit owner’s use of a designated accessible parking space located in a lot marked “Visitor Parking Only” and whether the corporation was entitled to charge the owner for the costs of enforcing the parking issue. The CAT decided that it had jurisdiction to hear the parking matter, found in favour of the owner regarding the use of the accessible parking spot and ordered the corporation to pay costs and damages (after the CAT applied Amlani and disallowed the corporation’s enforcement costs).

The corporation’s application for judicial review to the Divisional Court argued that the CAT exceeded its jurisdiction, made several errors of law and breached procedural fairness and natural justice. But the Divisional Court dismissed the application because:

  1. The corporation failed to exhaust its right of appeal under Section 1.46(2) of the Condo Act, which provides that a party to a CAT proceeding has a right to appeal to the Divisional Court on a question of law (i.e., errors in the CAT member’s application of the law). The Divisional Court recognized that it was the Legislature’s intention that CAT decisions be appealed and not submitted for judicial review; and
  2. There were no exceptional circumstances in this case warranting the Divisional Court’s interference by judicial review. Judicial review is a discretionary remedy which is not available where there is adequate alternative remedy, such as the right of appeal built right into the Condo Act. The Divisional Court also noted that the core issues raised by the corporation could have been raised in an appeal.

The corporation in this case must now bring a motion to extend time to properly bring its appeal under the Condo Act (if the unit owner doesn’t consent) since the time to do so expired while the corporation pursued judicial review.